U.S. Fidelity and Guar. Co. v. Woolard, 87-1939
| Decision Date | 26 April 1988 |
| Docket Number | No. 87-1939,87-1939 |
| Citation | 523 So.2d 798,13 Fla. L. Weekly 1001 |
| Parties | 13 Fla. L. Weekly 1001 UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. Brenda Ann WOOLARD, Personal Representative of the Estate of Judson H. Woolard, deceased, and Brenda Ann Woolard, Individually, and South Carolina Insurance Company, a corporation, Appellees. |
| Court | Florida District Court of Appeals |
George D. Gabel, Jr. and Robert M. Dees of Wahl and Gabel, Jacksonville, for appellant.
Richard M. Powers, Tallahassee, for appellees.
Appellant, United States Fidelity and Guaranty Company, appeals, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), a non-final order granting appellees' application for arbitration of a dispute concerning an insurance contract. We reverse.
Appellee Brenda Ann Woolard, as the widow of Judson Woolard, and as the duly appointed personal representative of his estate, made a claim under the uninsured motorist provisions of an insurance policy issued by appellant to Unit Transportation, the deceased's employer. The claim arose as a result of the deceased's death when the tractor-trailer he was driving struck the rear of a modified school bus on interstate 75 in Georgia. The deceased owned the tractor-trailer but was operating it on behalf of his employer, Unit Transportation. The policy in question was issued by appellant to Unit Transportation and provides coverage to the deceased as an employee of Unit Transportation. It contains uninsured motorist provisions as required by section 627.727, Florida Statutes.
Appellant filed a complaint for declaratory relief in the trial court, seeking a determination that appellees are not entitled to uninsured motorist benefits provided by the policy for the following reasons: (1) Under Florida law, in order to recover uninsured motorist benefits from an insurer, the limits of bodily injury liability protection provided by the policy must be greater than the limits provided by the carrier for the alleged tort-feasor. Section 627.727(3)(b), Florida Statutes. At all material times, the alleged tort-feasors in this case, the owner and the driver of the bus, apparently had liability insurance coverage. Thus, if the limits of bodily injury liability protection contained in the policies issued on behalf of the tort-feasors are in excess of the limits of uninsured motorist coverage under the policy issued by appellant, appellees have no uninsured motorist claim against appellant. (2) Since the deceased had his own insurance coverage with another company, any recovery by appellees from appellant would be prorated between the other insurance company and appellant. (3) Since the accident occurred in Georgia, Georgia law would apply. Under Georgia law, if the deceased was at least 50 percent negligent in causing the accident, his estate would be barred from recovering damages from the alleged tort-feasors, and, therefore, appellees would not be entitled to recover under the uninsured motorist section of the policy issued by appellant.
Appellees answered appellant's complaint and filed a "counter-complaint" seeking to compel arbitration pursuant to section 682.03(1), Florida Statutes, and a provision in the policy providing for arbitration. Appellant moved to dismiss the counter-complaint. After a hearing, the court denied appellant's motion but determined that it would consider appellees' counter-complaint as an application for an order compelling arbitration pursuant to section 682.03, and granted that application.
Appellees assert that pursuant to section 627.727(1), as amended in 1984, 1 all uninsured motorist coverage is...
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